Justice Scalia and Class Actions: A Loving Critique

21 Pages Posted: 20 Aug 2017

Date Written: August 17, 2017


In this essay, I review Justice Scalia’s class action jurisprudence. Although the Justice was not a consistent vote against class actions, two of his opinions -- interpreting the Federal Arbitration Act -- have done more to hinder class action lawsuits than any Supreme Court opinions before or since. Although I am one of the Justice’s biggest fans, I must admit that it is very hard to square either of these opinions with the text and history of the FAA. Nor am I persuaded that either of these opinions is consistent with the conservative and libertarian free-market principles that he and I shared.

Keywords: Class Actions, Justice Scalia, Arbitration, Conservative, Libertarian

Suggested Citation

Fitzpatrick, Brian T., Justice Scalia and Class Actions: A Loving Critique (August 17, 2017). Notre Dame Law Review, Vol. 92, No. 5, 2017, Vanderbilt Law Research Paper No. 17-42, Available at SSRN: https://ssrn.com/abstract=3020735

Brian T. Fitzpatrick (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-4032 (Phone)

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